Escambia County sues Clerk Pam Childers over withholding retirement payments

Escambia County has sued Clerk of Court and Comptroller Pam Childers over her refusal to make contribution payments for three county commissioners enrolled in the county's controversial local retirement plan.

Troy Rafferty with the Levin Papantonio Rafferty law firm, who is representing the county on the issue, filed a complaint Friday in First Judicial Circuit Court seeking a court order to force Childers to follow the county's contract for its 401(a) annuity program.

The move comes after Childers ceased any contributions to the program Jan. 7 after paying a reduced contribution rate of 8.34% since July.

Childers believes the county's retirement program violates Florida law as it amounts to a pay increase for county commissioners.

Payments to stop: Pam Childers tells Escambia County Commission she will halt retirement payments in January

Childers email: Commissioner overheard making 'offensive' sexist comments about county clerk

Dueling legal opinions: Childers gives Escambia County 30-day ultimatum on annuity program

If Childers was paying out the contract as written, as she did before July, the three commissioners enrolled in the program would get a contribution rate of 51.42% of their salary, which equates to $44,053 annually contributed directly into their retirement account.

The reason for the high contribution rate is because it’s the same amount the county pays into the state-run Florida Retirement System if a commissioner was enrolled in that program. However, that 51.42% doesn't end up in an individual commissioner's FRS account as most of that money is used by the FRS to pay for liabilities of the state's pension system. A commissioner in the FRS program would get a rate much closer to the 8.34% deposited into their FRS account.

Court battle: Escambia County Commission and Pam Childers poised for court battle over annuity program

Childers: Annuity program isn't legal, commissioners will need to pay back retirement fund

"Despite honoring her obligations for years, in the summer of 2021 the Clerk made the unilateral decision to cut payments to an arbitrary reduced rate, and then in 2022 decided to discontinue them entirely," Rafferty wrote in the complaint.

"Nothing has changed about the longstanding investment contract or the law to explain the Clerk’s unilateral decisions. But in the same summer 2021 timeframe, the Clerk aired in writing that she has personal and political disagreements with three members of the Board of Commissioners. As it so happens, three members of the Board are affected by the Clerk’s unilateral decision, including two of those the Clerk has the disagreement with."

However, the disagreement the complaint refers to stems from Childers' opposition to a now-defunct plan to give commissioners back-pay for "missed" years in the retirement plan.

The lawsuit cited an episode in June 2021 for the center of the disagreements arising when Childers sent an email following a commission meeting.

During that meeting, the commission discussed a now defunct back-pay plan that was spearheaded by Commissioner Steven Barry for commissioners and other senior-level staff who said they were never told the details of the county's local retirement plan and said had they known, they would have elected to join the county's plan rather than the FRS plan.

After a long discussion on the plan between the commissioners, Childers said at the end of the meeting that she wouldn't be able to support the plan.

Following the meeting, a county employee told Childers that three commissioners were talking in a back hallway as they were leaving and made disparaging sexist comments about Childers.

Childers sent an email to the commissioners saying she found the comments offensive and inappropriate from an elected official.

The county's lawsuit pointed out that Childers wrote herself a memo that said she began her investigation into the retirement program the same month. Two days after the June 2021 meeting, she made her first call to FRS over the issue.

"Whether the Clerk’s decisions are based on petty, personal animus that has nothing to do with her oath of office or the law is, as of right now, a question that has not been settled — because it is not time for the County to put factual evidence of that before the Court," Rafferty wrote in the complaint. "Such evidence does exist and can readily be the subject of discovery if necessary."

Childers told the News Journal on Monday that she believes the two sides in the dispute have not had a real meeting together to talk through the issues before it got to this point.

"Their decision to file a lawsuit is their decision, and I guess at this point, this is the only way it's going to get handled," Childers said. "As far as my role, my role as Clerk and Comptroller is not just ministerial. I have to be the watchdog. That is my duty. I work for the people. I have to know the rules, the statutes and read the contracts. When it's not right, and all the way to when it's illegal, I have the duty to stop it."

The complaint points out that Childers approved payments into the program since being elected in 2012.

Childers has publicly argued that she believes the high contribution rates of the program violate Florida law.

In the complaint, Rafferty said Childers does not have the power or authority to make such a decision and the withholding of payments for a contract approved by the County Commission is beyond her authority as she is legally the accountant for the county.

"That means the Clerk’s role here is not discretionary; it’s the definition of ministerial," Rafferty wrote in the complaint. "She is given no authority in the Florida Statutes to interpret laws and make policy decisions on her own. The People elected the Commissioners to make laws and enter into contracts, and the People elected the Clerk to be a clerk."

Rafferty argues the court has the power to rule quickly on the legal issues of Childers not issuing a payment without "wading into the factual dispute" because Florida law that the clerk's office is the board's accountant is "just that clear."

Jim Little can be reached at jwlittle@pnj.com and 850-208-9827.

This article originally appeared on Pensacola News Journal: Escambia annuity program: County sues Pam Childers for withholding payment